What Do Children Inherit When There is No Will?

We’ve written several articles about the disadvantages of dying without a will, including greater expense in handling the estate and the inherent frustration for family members who are left to sort it all out. While Texas law provides clear rules for distributing property to surviving family members, the existence of a blended family can quickly complicate matters.

In this article we will discuss the different rules for children of a previous marriage, step-children, adopted children and illegitimate children.

Children of a previous marriage

The law does not assume your surviving spouse will voluntarily share your estate with his or her step-children, so the rules require your estate to be divided between your surviving spouse, if any, and your children. Generally speaking, aside from any applicable spousal election, your spouse will receive one-half of your estate and the other half will be divided among your children.

So, who is considered to be your legal child?

Adopted children

Most folks already know that adopted children are treated the same as natural born children when it comes to intestate succession. Adopted children’s inheritance rights are protected under Texas law and are entitled to receive the same inheritance as your natural born children, if any.

Stepchildren

Stepchildren are not your legal children and they are generally not entitled to inherit from you, regardless how much time you’ve have been together as a family or how much you loved each other. This can be heartbreaking, especially if you helped raise your stepchild. The sole exception is if your stepchild can prove you made a verbal or written agreement to adopt, but had not yet completed the adoption process.

Illegitimate Children

Thankfully, there seems to be less stigma assigned to children born out of wedlock in our society today than in the past. The law, however, still holds a strict distinction for purposes of intestate distribution when a person dies without a will.

A child born to parents who are not married can inherit from his or her natural mother without restriction, but the child cannot inherit from his or her natural father or the father’s family members except under one of these circumstances:

The father legally adopts the child

Paternity is established in court before the child’s twentieth birthday

The father consents in writing to be named as the child’s father on the child’s birth certificate

The father voluntarily signs a written notarized statement of paternity

The father marries the biological mother and is obligated under a written voluntary promise to support the child

A probate court determines paternity after the father’s death

If your family structure is anything other than very traditional, consider whether any of these legal distinctions between children will result in unintended consequences if you die without a valid will. Avoid the default rules and make a will to ensure your property will be distributed the way you want it.

Chris Peterson is an attorney and the owner and founder of Peterson Law Group, a Texas law firm with offices in Bryan/College Station and Kingwood. He mainly practices in the areas of Estate Planning and Business Planning. Chris is also a Certified Estate Planner. Besides his law practice, Chris is a serial entrepreneur and community volunteer. He is known for his cutting edge law practice that utilizes technology to deliver efficient, excellent work.

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